Fibreglass & Rockwool Insulation Manufacturer's Association of Australia Inc v COC Pty Ltd (trading as Cool or Cosy Natural Insulation Services)

[1995] FCA 1115

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY       )        No VG 776 of 1995

)
GENERAL DIVISION                 )

BETWEEN:FIBREGLASS AND ROCKWOOL INSULATION MANUFACTURERS' ASSOCIATION OF AUSTRALIA INCORPORATED

(Applicant)

AND:COC PTY LTD (ACN 058 817 771) (trading as Cool or Cosy Natural Insulation Services)

(First Respondent)

AND:JOSEPH DEBRECZENI

(Second Respondent)

CORAM:    RYAN J

PLACE:    MELBOURNE

DATE:     23 NOVEMBER 1995

REASONS FOR JUDGMENT

RYAN J:   There is before the Court a motion by the respondents for the transfer of these proceedings from the Victoria Registry to the Western Australia Registry of this Court.  The first respondent is incorporated and carries on business in Western Australia, and the second respondent is a resident of that State.  The applicant is incorporated pursuant to the Associations Incorporation Act of New South Wales and, I infer, is composed of various companies and other persons engaged in the manufacture of fibreglass and rockwool insulation.
The applicant contends that it would be put to added expense and inconvenience and would be restricted in using the services of solicitors and counsel of its choice if the proceedings were transferred to Western Australia.  It is further put that expert witnesses from Melbourne and Sydney will be required to give evidence on scientific and medical matters which will be put in issue.

As well, it has been suggested on behalf of the applicant that evidence going to the making of the representation in issue on the pleadings or on the statement of claim will not be required to be given because the representation has been recorded on audio tape.  However, Mr Tsalanidis, of counsel for the respondents, has pointed out that issues going to the admissibility of that recording may have to be resolved by resort to the provisions of the Listening Devices Act 1978 and he submits that the relevant statute is the Act of that name of the State of Western Australia.

Each party has retained solicitors and counsel in Melbourne and Perth respectively.  However, available mechanisms for the filing and service of pleadings and other interlocutory process would not compel the termination of those retainers irrespective of which registry the Court should indicate as the proper place for the proceedings.

Likewise, expense will be incurred in calling evidence from another State wherever the trial may be conducted.  The Court, in what the Full Court in National Mutual Holdings Pty Ltd and Others v Sentry Corporation and Another (1988) 83 ALR 434 at 441 called its "national character", is well placed to minimise that expense by taking evidence in Melbourne, Perth and even Sydney as required; see Order 30, rule 6.

On balancing the factors revealed by the affidavit material and applying the principles enunciated in National Mutual v Sentry, I am persuaded that the balance is in favour of the transfer of these proceedings to the Western Australian Registry at least for interlocutory purposes.

I shall therefore order:

1. That the proceedings be transferred to the Western Australian Registry of the Federal Court.

1. That the costs of all parties for the motion on notice dated 25 October 1995 be costs in the cause.

1. That the directions hearing of 15 December 1995 be vacated.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of His Honour Justice Ryan.

Associate:

Date:

Counsel for the Applicant    :    Mr G D Cullen

Solicitors for the Applicant :    Jerrard & Stuk

Counsel for the First and    :    Mr J Tsalanidis

Second Respondents

Solicitors for the First and :    Mazza McCallum & Robinson

Second Respondents

Date of Hearing             :    23 November 1995

Date of Judgment            :    23 November 1995